Garcia v. U.S. Attorney Gen.
| Decision Date | 09 December 2020 |
| Docket Number | No. 18-13474,18-13474 |
| Parties | ANGEL VASQUEZ GARCIA, AXEL VASQUEZ NORIEGA, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
[DO NOT PUBLISH]
Petition for Review of a Decision of the Board of Immigration Appeals
Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.
This is the appeal of a father, Angel Vasquez Garcia (Angel), and his adult son, Axel Vasquez Noriega (Axel), from a decision of the Bureau of Immigration Appeals (BIA) dismissing their appeal of an immigration judge's (IJ) denial of their petitions for asylum, withholding of removal, and protection under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Angel and Axel are Venezuelan citizens alleging that they have been victims of political persecution by the Venezuelan government. After careful consideration, we affirm the BIA's decision to deny relief to Angel, but we remand for clarification as to Axel's past-persecution claim.
In August 2017, the Department of Homeland Security (DHS) issued a notice to appear (NTA) charging Axel with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for being an alien without a valid entry document at the time of his application for admission. DHS issued a similar NTA to Angel the following month, and both Angel and Axel conceded removability. They applied for asylum, withholding of removal, and CAT protection,1 alleging past persecution and a fear of future persecution based on their political beliefs.
Specifically, Angel and Axel claimed that they were opponents of "the socialist, totalitarian government of Venezuela," Adeco (Democratic Action) Party sympathizers, and active members of the "Primero Justicia" (Justice First) opposition movement. They alleged that their wife/mother, Yeasse Noriega de Vazquez (Yeasse), was injured by a government vehicle that drove into a crowd of protestors and that Axel "was injured by a projectile shot by government forces." Further, they stated that a neighbor warned them that they were going to be detained by the authorities—this warning, they said, prompted them to flee to Colombia, and ultimately to seek refuge in the United States.
Angel and Axel attached several exhibits to their applications, including affidavits detailing the events prompting their flight to the United States. One affidavit was from Yeasse, in which she stated that she and her family are "strongly opposed to the current government and its abuses towards anyone who is not a member of their party" and had "been victims of violent persecution" from the Venezuelan government. Yeasse said that she had traveled to the United States the previous year following the death of a friend—who she alleges was killed by the Venezuelan government—but that she returned to Venezuela several months later. After her return, she said, neighbors who "were well connected withgovernment sources" warned her that government agents were coming for her—this prompted her family's flight back to the United States.
Angel and Axel also included an affidavit from a neighbor in their residential building, Yanet Urdaneta Gonzalez (Urdaneta), who attested to the family's anti-government activities. She noted a conversation that took place over a WhatsApp group chat for residents in their building, in which criticisms arose of Axel's participation in nearby protests. Urdaneta said that the conversation caused the government to target Angel and Axel's family, and it was her warning that prompted them to flee Venezuela.
In addition, Angel and Axel submitted declarations that they were active members of Primerio Justicia, medical records documenting Yeasse's protest-related injuries, medical records detailing Axel's injury from a non-lethal projectile wound in his left thigh, and photographs depicting these injuries and local protests. Finally, they included country-condition reports detailing how the Venezuelan government frequently attacks, detains, and tortures political opponents and protestors, as well as how the Bolivian National Guard and Bolivian National Intelligence Service (SEBIN) have detained and abused hundreds of government opponents in Venezuela. These reports noted that security forces often use nonlethal weapons like teargas and pellets to break up protests.
An IJ conducted a consolidated hearing for Angel and Axel. Angel testified at the hearing; Axel did not. Angel stated that he and his family fled to the United States after learning from a neighbor that a couple who lived in their building was affiliated with SEBIN, which was planning to search their home. They left promptly out of fear that they would be detained and tortured, but Angel couldn't say whether SEBIN or other government agents ever actually came to their home. After some probing, Angel said the following when questioned about whether he had been physically harmed in Venezuela:
Yes. Yes. During protests. I mean, with the bombs and the rocks that even the police throws and with the BB guns. If it didn't hit me, that's something different but yes, during the protests. . . . It didn't injure me but they, they hit me. A [tear gas] bomb was dropped right by my feet and by luck I didn't—I wasn't asphyxiated by it.
Yeasse also testified. She discussed her neighbors' WhatsApp group chat, noting that on the day the family fled Venezuela her neighbors had been discussing a young man who had been seen going to and coming from a protest. Yeasse said that one unnamed neighbor was particularly concerned and that Yeasse had asked her whether she thought Axel was the man in question. Yeasse explained that the neighbor then removed herself from the group chat—later, Yeasse testified, Urdaneta told her that this neighbor was affiliated with the government and that the government was coming after her family as a result of Axel's participation in theprotest. In response, Yeasse said that her family packed their belongings and left their home a short ten minutes later. She wasn't able to confirm whether the authorities ever showed up at her home.
Yeasse also testified about the photos of her son's injuries, alleging that "[t]he national guard shot [her] son on his leg." Angel and Axel's counsel later clarified, however, that although Axel "was shot at a protest," the family didn't "know who pulled the trigger in particular." "All [they] know," he said, "is that no one who is not in the government is armed in Venezuela" and that "[o]nly government and their supporters have firearms." Yeasse also discussed a citation that her small business received from the Venezuelan government, explaining that if she wasn't in the country her business wouldn't be able to operate. She speculated that this citation was an attempt by the government to get her to come back to Venezuela "because they want to get [her]."
Although the IJ found that the testimony presented at the hearing was credible and consistent, he ultimately denied Angel's and Axel's petitions. First, the IJ held that Angel and Axel hadn't shown past persecution. With respect to Angel's petition, the IJ found that there wasn't any evidence that he had been physically harmed in Venezuela or that he had ever been personally threatened by anyone affiliated with the government. Rather, his fear was based on hisneighbor's warning, and there was no evidence that this warning "turned out to be true." The IJ stated that although Angel and Axel had "lived in Venezuela for virtually all of their lives . . . there is no evidence that the authorities or SEBIN had ever come to [their] house to arrest them or to detain them or to harm or kidnap them or to do anything improper to them while they lived in Venezuela."
With respect to Axel, the IJ acknowledged that there was "testimony that he was shot while attending a protest," but he found that "[t]here [was] little evidence in the record to identify who may have shot" Axel. The IJ said he could not "just . . . assume that it must have been the government because the overwhelming evidence is that only the government and its supporters have guns in Venezuela," as that "notion . . . simply ha[d] not been established in any credible way." Thus, the IJ held that "there [was] no evidence that [Angel] was shot because of his political or imputed political opinion." Ultimately, the IJ concluded, he was "left to speculate about far too much in this case to find that the respondents had met their burden of showing that they suffered harm rising to the level of persecution."
Likewise, the IJ held that Angel and Axel hadn't established "an objective basis to fear future persecution in Venezuela . . . based on any ground that is protected by the" INA. The IJ found that their subjective fear of persecution wasn't objectively reasonable considering the lack of evidence that anyone from the government had actually come to their home after they fled. Because theyhadn't met the standard for asylum, the IJ held that their claims for withholding of removal and CAT protection also failed.
Angel and Axel appealed to the BIA. The BIA dismissed their petitions. It "agree[d] that the respondents did not establish a nexus to any protected ground for purposes of establishing past persecution or a well-founded fear of persecution, based on the described events." The BIA observed that Angel "was not harmed physically in Venezuela" and that Axel, "who could not identify the individual who shot him with a BB gun at the protest, did not show that anyone was motivated to harm him based on a statutory ground." With respect to future persecution, the BIA affirmed the IJ's finding that Angel's and Axel's fear of future persecution wasn't objectively reasonable, as it "was based on secondhand or thirdhand information from neighbors." The BIA also affirmed the IJ's findings on withholding of removal and CAT protection.
Angel and Axel appealed to this Court, challenging...
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